VAL CO:R:C:V 545087 CRS

District Director
U.S. Customs Service
U.S. Customhouse
1 East Bay Street
Savannah, GA 31401

RE: Internal Advice 51/92; transaction value; related parties; circumstances of sale Dear Sir:

This is in reply to your memorandum of July 27, 1992, under cover of which you forwarded internal advice request 51/92 filed by **************************** behalf of **************, Inc. Inc. has requested and been granted confidential treatment with respect to commercial and financial information contained in submissions made pursuant to its internal advice request. We regret the delay in responding.

FACTS:

Inc., a subsidiary of Parent Company, markets and processes certain fiber products, including viscose, polyester and nylon fibers (the industrial fibers) and aramid fibers, imported from its related companies Related Company 1 and Related Company 2. The imported fibers are used in the production of, e.g., mechanical rubber goods, hoses, tires and bullet-proof vests. The merchandise is entered through the ports of Savannah and Detroit.

Inc. acts as the importer of record in "direct" sales from Related Company 1 and Related Company 2 to unrelated customers in the United States and, in addition, imports for its own account (the "indirect" sales). In the first scenario, Inc. is the importer of record in direct sales of aramid fibers between its related ********* manufacturers and their unrelated U.S. customers. Inc. acts as an agent in these transactions and is responsible for soliciting and forwarding orders, employing the broker, arranging deliveries and depositing duties in order that merchandise can be delivered to unrelated U.S. purchasers on a duty-paid delivered basis. In addition, Inc. is responsible for quality control in sales to all unrelated U.S. purchasers. As compensation for its services, Inc. is paid a commission equal to *** percent of the net f.o.b. sales price, or *** percent of the gross sales price. While the price of the imported merchandise varies from product to product, the difference between the direct sales price and the indirect sales price is essentially the amount of the commission that Inc. receives as compensation for its role as agent.

In the second scenario (the indirect sales), Inc. imports industrial and aramid fibers on a speculative basis according to the anticipated needs of its customers. The terms of sale are c.i.f. with the risk of loss passing to Inc. at the f.o.b. point in Europe. Inc. is responsible for import costs, brokerage and duties.

Both you and the importer agree that the so-called "direct" sales through Inc. as agent to unrelated parties at c.i.f. duty- paid prices, including commissions, are properly appraised on the basis of transaction value.

However, you contend that the relationship does affect the price of the "indirect" sales and that transaction value is therefore an unacceptable basis of appraisement. You state that while the "indirect" sales are made at intercompany prices determined by the foreign seller, the "direct" sale prices to unrelated U.S. purchasers are determined on a negotiated basis. Furthermore, you maintain that Inc. is simply an agent who warehouses stock in order to fill orders. Consequently, you urge that the "indirect" sales be appraised on the basis of transaction value of identical or similar merchandise and that a commission equal to that paid to Inc. in the direct sales be added to the sales price.

ISSUE:

The issue presented is whether the relationship between the buyer and the seller in the indirect sales influenced the price actually paid or payable such that transaction value is not an acceptable basis of appraisement.

LAW AND ANALYSIS:

Merchandise imported into the United States is appraised in accordance with section 402 of the Tariff Act of 1930, as amended by the Trade Agreements Act of 1979 (TAA; 19 U.S.C. 1401a). The preferred method of appraisement is transaction value, defined as "the price actually paid or payable for merchandise when sold for exportation to the United States." 19 U.S.C. 1401a(b)(1).

However, where the buyer and seller of imported merchandise are related, appraisement under transaction value is acceptable only under two conditions. First, it is acceptable provided the circumstances of the sale indicate that the relationship between buyer and seller did not influence the price actually paid or payable. 19 U.S.C. 1401a(b)(2)(B). Alternatively, transaction value is acceptable if it closely approximates either the transaction value of identical or similar merchandise in sales to unrelated buyers, or the deductive or computed value of identical or similar merchandise. 19 U.S.C. 1401a(b)(2)(B)(i)-(ii).

Under the first approach, should the circumstances of sale indicate that while related, the parties buy and sell from one another as if they were unrelated, transaction value will be considered acceptable. Thus, if the price is determined in a manner that is consistent with normal industry pricing practice, or with the way the seller deals with unrelated buyers, the price actually paid or payable will be deemed not to have been influenced by the relationship. Statement of Administrative Action, reprinted in Customs Valuation under the Trade Agreements Act of 1979, Department of the Treasury, U.S. Customs Service (October 1981), at 54; Headquarters Ruling Letter (HRL) 543806 dated March 12, 1987, at 2; HRL 543984 dated February 22, 1988 at 3.

Counsel for Inc. contends that prices are set by the related party seller in the same manner irrespective of whether the sales are made directly through Inc. as agent for a third party, or indirectly to Inc. for inventory and resale. In regard to the former, Inc. notifies the seller what the unrelated buyer is willing to pay for the merchandise, calculates the cost of delivery, including the commission, in order to arrive at the net amount that will accrue to the seller. The related party seller then accepts or rejects the price, or suggests an adjustment to be negotiated with the buyer.

Under the second scenario (indirect sales), Inc. advises the related party seller of the approximate market price for specific merchandise, and the amount Inc. expects to charge for it on resale. From this Inc. deducts its expenses for freight, customs and carrying costs. The balance is the amount Inc. offers the related party.

Counsel maintains that the manner in which negotiations are conducted, i.e., the circumstances of sale, indicates that the relationship between the parties does not influence the price actually paid or payable. We do not find this to be persuasive. Nevertheless, information provided by counsel substantiates the fact that the only difference in the price under both of the above scenarios is the commission paid to Inc. as agent in the direct sales. This information supports counsel's contention that the relationship does not affect the price actually paid or payable; accordingly, transaction value is the appropriate basis of appraisement in the case of both the direct and indirect sales.

HOLDING:

The relationship between Inc. and its related party sellers does not affect the price actually paid or payable. Transaction value pursuant to section 401(b) of the TAA is the proper method of appraisement.

This decision should be mailed by your office to the internal advice requester no later than sixty days from the date of this letter. On that date the Office of Regulations and Rulings will take steps to make this decision available to Customs personnel via the Customs Rulings Module in ACS, and the public through the Diskette Subscription Service, Lexis, the Freedom of Information Act, and other public access channels.

Sincerely,

John Durant, Director